Sharanjeet
Parmar holds B.A. (Ottawa), LL.B. (Dalhousie), and LL.M (N.Y.U.) degrees.
She
is currently a Clinical Advocacy Fellow with the Human Rights Clinic, Human
Rights Program, Harvard Law School. Ms. Parmar lived and worked in Africa for almost three years, primarily as a Trial Attorney for the prosecution at the Special Court for Sierra Leone. She also worked as a Rule of Law Manager for the
International Rescue Committee in South Sudan. She has been a member of the
Law Society of Upper Canada since 2001

Introduction - The
cultural and legal pluralism of Sudan

As
Africa's largest country, Sudan includes many religious, ethnic and
socio-economic groups. Prevailing issues of access to resources, economic
opportunity and power against the background of such diversity has unfortunately
resulted in some of Africa's longest-running conflicts since the country became
independent in 1956. These conflicts have included those between
Muslim-Christian, Arab-African and nomad-farmer groups, e.g. The rule of law
is but one of many casualties resulting from the permanent presence of conflict
(or threat thereof) in the South, West and Eastern regions. Not surprisingly, historical,
social and political factors have largely shaped Sudanese laws in terms of
substance and application, including colonial legacies, a historically
Arab-dominated central government and the presence of an intricate network of
informal laws that are based upon religious, ethnic and/or tribal communities.
The complexity of these factors renders it extremely difficult to distil a comprehensive
overview of formal and informal Sudanese laws that are currently in operation.
Rather, this article will attempt to present an elementary overview of principle
Sudanese laws, as well as some contextual background as to the nature of the informal
justice mechanisms that operate outside the formal legal mechanisms.

This
article will provide a brief overview of Sudan's political history and current
political landscape; the Judicial System, including courts system under common
and customary law; the operation of customary laws, and finally Sudan's formal laws. The overview of formal laws includes criminal (Criminal Act, 1991; Criminal
Procedure Act, 1991); civil (Muslim Law Act 1991); commercial (Banking; Investment
Encouragement; National Petroleum Commission,
Telecommunications, Copyright); public laws (Khartoum Public Order Act; Labour
Act, 1997); as well as gender issues, and child rights and duties (Child Act
2004). A final section is included that lists important domestic legislation;
as well as primary treaty law to which Sudan is a signatory. A list of useful
electronically available resources is also provided, in particular, links to
extensive reporting on human rights practices in Sudan.

A. Governance
history and current political landscape

Prior
to independence in 1956, Sudan was jointly administered by Anglo-Egyptian
forces following their capture of Khartoum in 1898. The north and southern
regions of Sudan were administered separately until 1947, after which political
power was placed within the hands of a northern elite that was composed largely
of Arab ethnicity. Following independence, the North and South have been in
almost constant conflict; the first civil war lasting from 1956 - 1972 and the
second from 1983 to 2005. At present, "Sudan has an authoritarian government
in which all effective political power lies in the hands of President Omar
Hassan al Bashir and the National Congress (NC) Party inner circle, who have
been in power since a 1989 military coup (that was) instigated and supported by
the fundamentalist National Islamic Front (NIF). . In 2000, Bashir was
re-elected, and his NC/NIF political party won 340 out of 360 seats in the
Parliament in deeply flawed elections boycotted by all major opposition
parties. NC/NIF members and supporters continued to hold key positions in the
Government, security forces, judiciary, academic institutions, trade unions,
professional associations, and the media."[1]

According
to International Crisis Group, Sudan is divided by religion (70 per cent
Muslim, 25 per cent animist, 5 per cent Christian), ethnicity (between African
and Arab origin Sudanese), tribe and economic activity (between nomadic and
sedentary cultures).[2]
The principal conflict between the northern and southern parts of Sudan was borne out during 1956 - 72 and 1983 - 2005 and has cost an estimated 2 million
lives, while displacing over 4 million people. The origins of what developed
into a national conflict between the North and South have been said to lie in Sudan's colonial past; however, economic and political disparities, the discovery of
oil-rich areas in the South, as well as regional power politics have also
fuelled the conflict.

Not
surprisingly, the early mixture of British and Arab rule, combined with more
recent assertions of Islamisation by political forces in Khartoum[3], have had significant
implications upon the composition of Sudanese laws. Indeed, the religious
composition of the warring groups has also influenced the nature of laws administered
in areas controlled by the Muslim-dominated central government and the
Christian rebel movement in the South.

The Comprehensive Peace
Agreement (CPA)

A
cease-fire was eventually declared between the Sudanese government and the
Sudan People's Liberation Movement / Army (SPLM/A) in July 2002. Peace talks
were carried on through 2003, though fighting also continued on both sides;
eventually in 2005, a peace agreement between the Government of Sudan and the
SPLM/A was reached. Highlights of the Comprehensive Peace Agreement include a
Power Sharing Agreement, a Wealth Sharing Agreement and Security Protocol; and
special power and wealth sharing agreements for the areas of Abyei, Southern
Kordorfon and Blue Nile (also referred to as the Three Areas), which
individually possess specific factors that precipitated and prolonged the
conflict - including and especially resource wealth).

Despite
the death of SPLM leader and Vice-President elect John Garang in August 2005,
the peace process continued with the ratification of a new constitution in
October 2005, the swearing-in of a new government (that divided executive posts
between the ruling parties of the North and South) and the functioning of an
autonomous Southern legislature and government. Much of Sudan's laws will undergo amendment following the new Constitution, which seek to balance
interests and power between the South Sudanese and Central Governments.

The
UN has deployed a multilateral peacekeeping observer mission to the South that
is mandated to monitor the implementation of the agreement and support the
building of national capacity until a referendum on the sovereignty of the
south can be held in 2011. Despite all of this progress, tensions between the
Government of National Unity (GONU), i.e. the National Congress, and the Sudan
People's Liberation Movement (SPLM) remain live. The SPLM has accused the GONU
of slowing down implementation of the Comprehensive Peace Agreement (CPA). The
issues in dispute included the designated commissions by agreement, Abyei
borders, withdrawal of the government army beyond the Independence border of
January 1956, the volume and revenue of oil production, and the democratic
transition, which had been extremely sluggish.[4]

Current conflicts - Darfur and the East

The
peace between the North and the South remains fragile, while other conflicts or
threats thereof loom elsewhere in Sudan, notably in Darfur and Eastern Sudan. The central government continues to wage war in Darfur, since the taking-up
of arms by the Sudan Liberation Army/Movement (SLA) and Justice and Equality
Movement (JEM) rebels (predominantly African sedentary tribes of the Fur,
Zaghawa and Massaleit) in February 2003. The central government responded by
arming Arab "Janjaweed" militia, in addition to deploying the Sudanese army.
Some estimate that Darfur conflict has displaced almost 2 million and taken
anywhere from 200,000 - 400,000 lives. With much of the civilian population
permanently displaced, the rule of law appears virtually non-existent.
Humanitarian agencies such as International Rescue Committee together with the
United Nations Development Fund have undertaken efforts to build "Justice
Confidence Centres" in displacement camps, which aim to create community spaces
for resolving disputes as well as information on human rights and local laws.
To the East, a third conflict may escalate between the Government and the
opposing "Eastern Front", who are in negotiations towards a peace agreement.
The Islamist Ruling Party (known as the NCP - National Congress Party) is
alleged to maintain dominance over the region by measures not unknown in Darfur - undercutting support for the opposition through patronage, divide-and-rule
policies, and the creation of tribal militias.[5]
International Crisis Group reports that some fear that humanitarian levels in
the East have dropped lower than those in Darfur. Both situations bode poorly
for rule of law and access to justice for local populations.

B. The Judicial System

Arbiters
of disputes and administrators of formal and informal laws come in various
forms throughout Sudan, depending on ethnic, religious and political factors.
Judicial courts are provided for under both statute and customary law
while informal community practices also rely upon local chiefs, known as
Sultans, to resolve disputes between community members. Indeed, "(t)he
judiciary relies greatly on popular justice for solving disputes through
methods of conciliation and the application of tradition."[6] Customary laws generally
consist of non-state dispute resolution systems that are usually based upon
local customary, traditional or tribal systems of justice. Given Sudan's ethnic and religious plurality, customary laws and practice are diverse, differing
from tribe-to-tribe and community-to-community. Case reporting of decisions by
the formal courts is published in the Sudan Law Journal and Reports,
whilst laws are published in the Sudan Gazette.

According
to Y. Sherif, Northern "judiciary structures are more developed but the independence
of the judiciary seems to have been compromised - as evidenced by the arbitrary
dismissal of qualified judges, attorneys-general and law officers. Existing
legislation fails to guarantee the full spectrum of human rights and
fundamental freedoms, while military decrees and emergency laws undermine those
rights currently protected by statutory law."[7]
Indeed, thought the "Constitution provides for an independent judiciary;
however, the judiciary (is) largely subservient to the President or the security
forces, particularly in cases of crimes against the state."[8]

Questions
of independence reach beyond the judiciary to practising lawyers. Lawyers
throughout Sudan must belong to the National Bar Association, which is based in
Khartoum. Outside of Khartoum, the Association is viewed as being overly
urban in both composition and its substantive focus and therefore removed from
the daily needs and challenges outside of the capital. However, it is unfair
to characterize an entire bar; indeed, the Association has endured its own
difficulties even within Khartoum. In 1992, "the government amended the
Advocate Act of 1983 in such a drastic way as to totally abrogate the
Association's independence. For the first time in its history, the SBA has been
reduced to another trades union. the Association has now been registered with
the Registrar of Trades Union."[9]
According to the U.S. Department of State, members of the legal profession are
harassed by the Government viewed as political opponents; some have been detained,
including the Director of the Darfur Lawyers Association, Mohamed Adomo, who
was later released.[10]

The Supreme Court

The
Supreme Court is composed of seventy judges and operates through panels that
are composed of three judges, which are presided over by the most senior of the
three. Decisions are reached by a majority of opinion and are subject to
revision only if and when the chief justice deems that an infringement of (shari'a
laws) has taken place. In this case the Chief Justice convenes a five member
panel, the majority of whom must not have participated in reaching the disputed
decision in order to receive the matter. The court disposes of appeals against
the judgments of the courts of appeal in civil, criminal and personal matter
cases."[11]
The Court also has "preliminary jurisdiction of a single judge to consider
appeals against the administrative decision of the president of the republic of
the governors and of the federal and state ministers. Appeals from the
decision of this single judge's court are dealt with by panel of three Supreme
Court judges."[12]
Four circuits of the Supreme Court operate outside the capital in the western,
central and eastern states.[13]

The Constitutional Court

In addition to the
Supreme Court, the Sudanese judicial system includes four types of courts:
regular courts, which primarily consider criminal and civil matters; special
mixed security courts, military courts and tribal courts, which apply customary
law to resolve disputes over land and water rights and family matters. The
regular courts include Court of Appeal, the Public Courts[14] and District Courts[15] (courts of first instance).[16] The Constitutional Court
considers:

a.Interpretation
of the constitution when requested to do so by the President of the Republic,
the National Assembly, half of the Governors of the states or half of the State
Assemblies.

Suits
from any aggrieved person to protect the freedoms and rights guaranteed by
the Constitution after exhausting the executive and administrative
remedies available.

Suits
concerning jurisdictional conflicts between national and federal bodies.

Criminal
procedures against the President of the Republic and the Governors under
the Constitution or the laws.

Objections
concerning the acts of the President of the Republic, the Council of
Ministers or a National or Federal Minister if the objection concerns any
infringement of the national constitutional system or the constitutional
inviolable freedoms or rights.

Any
other matters determined to be within the competence of the Constitutional Court.[17]

During
a campaign of Islamisation in 1983, the central government reunified the civil
and shari'a courts, which had earlier been made separate during
colonialism. Subsequent constitutional reform did not alter the ability of
formal courts to consider shari'a law.

Military
intelligence/security cases

"In
addition to the regular police and the Sudan People's Armed Forces, the
Government maintain(s) an external security force, an internal security force,
a militia known as the Popular Defense Forces (PDF), and a number of police
forces. The security forces (are) under the effective control of the
Government. Members of the security forces (commit) numerous, serious human
rights abuses."[18]
Arrests and detention can occur extra-legally or under emergency powers. For
example, individuals associated with armed forces rebelling against the
government can be accused of crimes against the state (Chapter 5, Criminal Act
1991). Created under the Special Courts Act, security courts constituted
of three civilian judges convene to hear such cases. Those in military
intelligence custody who later find their case before such courts are not
permitted representation by a lawyer, though they may be accompanied by a
'friend.' Accordingly, lawyers have attended security cases as such, though
are not permitted to address the court. Overall, due process is not ensured in
military or civilian courts.[19]
Sentences are usually severe and implemented immediately; death sentences are
referred to the Chief Justice and the Head of State.[20]It has been
reported that children used by armed groups as spies have later been tortured
to death in Military Intelligence custody.

Islamic hadd cases

Individuals
may also be convicted of crimes defined in Islamic shari'a law, which
can include Islamic hadd punishments of amputation and death. It has
been noted that girls alleging rape can in turn be themselves accused of
adultery in such courts. Charging women with adultery is not unique to North Sudan. Indeed, in a prison in the town of Wau, South Sudan, many women were in
detention under the charge of adultery - either for having relations with a man
before marriage and/or refusing marriage arranged by her family.[21]

Popular or tribal courts

Popular
courts are staffed by respected community elders and enforce customary law that
is not considered to be inconsistent with the law or public policy. Generally,
judges are citizens of good conduct who are "well known, well reputed and
reasonably well off in rural areas"; membership includes tribal chiefs, Omdas,
sheikhs, and Nazirs.[22]
Due process in customary courts does not appear to be clearly defined,
rendering them vulnerable to arbitrary application of the laws. Cases in
customary courts can be referred to statutory courts; such courts also have
powers of detention.

Southern Sudan

The
parallel operation of formal laws with informal laws is particularly strong in Southern Sudan. During the civil war, "units of the armed forces and militias ruled by
force of arms, and in many cases the accused were summarily tried and punished,
especially for offences against public order."[23]
Within the former SPLM controlled areas, SPLM de facto laws and decrees were
undermined by a severe lack of judicial facilities and lack of trained personnel
in the judiciary and law enforcement. These institutional short-comings remain
today and pose serious challenges to justice reform and access. For example,
in the Southern Kordofan state, there are less than 30 well-qualified judges
and about 50 lawyers. Here, shari'a- based laws remained applicable
during the war in those areas formerly-held by the Government of Sudan, while a
common law system was administered in former SPLM/A rebel-controlled areas.
Indeed, under the terms of the recent peace agreement for Sudan, customary law will dominate in the South Sudan. It is presently unclear how the
customary law system will in the future formally interact with the development
of a formal legal system in the South, as well as with the justice system in
the north of the country. Recent outcry over the continued application of
strict Islamic shari'a Law in Southern Courts that remain adjudicated by
Northern judges suggests that law reforms required under the CPA are not being
to the liking of Southerners.[24]

"The
SPLM has a judicial system of county magistrates, county judges, regional
judges, and a court of appeals."[25]A High Court
is located in each Southern State whilst the Supreme Court is situated in
Rumbek. Southern States will generally continue to have the two systems of
formal and customary law operating until the new Government undertakes to merge
them. The formal courts are located mainly in towns; their role is not well
understood by the public. Public access to the courts has been criticized by
outside observers as practically non-existent due to high user charges,
cumbersome formal procedures and their distance from the people, especially
poor rural communities. Limited operational budgets prevent courts to hear
cases in rural areas or for judges/legal administration officers to monitor and
guide traditional courts on points of law and procedures.

C. Customary Law

Justice John Wuol Makec
writes in "Legal Aid and its Problems in Sudan: Proposed Supplementary
Mechanisms":

One of the main
objectives of customary law is the establishment of peace and harmony between
the parties and society as a whole through compromise, conciliation, and
compensation or restoration of social imbalance created by the commission of
wrong or criminal acts.[26]

The
largely dualistic legal structure in Sudan results in several stages being
passed before a matter reaches any formal justice institution (such as the
police or statutory Courts) - if at all. Indeed, there exists a strong
customary law network through which personal problems are dealt with.

The operation of
customary law

Personal
matters are generally governed by the religious laws of the particular
individuals concerned: Muslims are usually governed by local interpretations of
shari'a law, whilst Christians are governed by local understandings of
sectarian laws. If an individual is of no formal religion, then personal
issues are governed by the customary laws of his/her particular tribe. For
example, the tribal laws of the Dinkas in the South are in fact codified and
held by the local Mullah. Other local tribes rely upon an oral tradition that
is according to custom.

For
family disputes, often the father or the head of the extended family will
resolve matters within the family unit. Beyond the family, people who are
party to disputes, whether they are husband and wife or neighbours, will go to
the local Sultan to resolve the issue. The Sultan applies local customary laws
and tribal practices in reaching a resolution of the issues presented before him.
In cases of dissatisfaction with his decision, either party will apply to the
District Court Judge and appeal. However, the decision of the Sultan is
usually respected by the District Court Judge in deference to his sound
knowledge and practice of local customary law.

Mediating
disputes is generally the means by which conflicts are handled within the
community. Fully outlining the myriad of local practices requires deep
knowledge and access to individual communities, which is beyond the scope of this
introduction. Given the dire need for capacity-building of local police, the
office of the attorney general and judiciary throughout Sudan - especially in
post-conflict areas (and outside the capital), the dominance of the
community/customary network holds much potential for justice advocacy.
Naturally, customary law is weak in terms of human rights protections for women
and children; nonetheless, individual interventions by local justice actors can
serve to slowly improve and strengthen customary laws.

D. Formal Laws

Sudan's formal
legal system is grounded in British common law and Islamic law.[27] Sources of law are Islamic
law, constitutional law, legislation, judicial precedent, and custom. In family
law, judicial circulars (manshurat) issued by the Qadi al-Quda (first
issued in 1916) served to institute reforms or instruct the application of
particular interpretations.

Criminal Law

Sudanese criminal law
includes elements from British colonial penal law, Egyptian civil code and more
recently, what are known as the "September Laws," otherwise referred
to as hudud (sing., hadd) or penalty prescribed by Islamic law.[28] The applicable criminal laws
include: Criminal Act, 1991 and Criminal Procedure Act, 1991 (CPA); as well as shari'a
and local custom. The following is an overview of general due process
provisions[29]:

Arrests under the
CPA: An arrest may be undertaken in two modes: arrest by prosecution
attorney or magistrate's warrant (s. 67) or arrest by a policeman or
"People's administrator" (that is, chairman of a state-sponsored local
committee for order) (s. 68). In Darfur, a "People's administrator" is
usually a tribal leader, appointed by the Government under the 1991 Native
Administration Act. People can be arrested without warrant if found in suspicious
circumstances, or if found with property suspected as stolen, or for not
giving their name and address.

Recording arrest:
Police must record arrests made without a warrant in a register of arrests
(s. 75.2, s. 82), and inform the prosecution attorney or magistrate (s.
77).

Interrogation:
Investigations are carried out by the General Crimes Police (s. 39) and
should be recorded in writing (s. 41) and include statements of the
accused and decisions taken regarding charges (s. 42). Suspects may undergo
medical examination for purposes of gaining evidence, not for protection
(s. 49). If an accused confesses, a magistrate should immediately assess
the voluntariness of confession and record his judgement (s. 60). Lawyers
are not present at interrogation.

Powers of
detention: The CPA allows police to detain people for no more than 24
hours for inquiry; the prosecution attorney can renew detention for no
more than 3 days for inquiry; the magistrate can renew detention weekly,
for up to two weeks; the superior magistrate can renew detention weekly,
for up to six months (s. 79). CPA allows for police supervision or
restriction of movement of accused persons (ss. 84, 85).

Records of
detention: Magistrates need to record reasons for arrests in the Case
Diary (mahdar al-taharri) (s. 79), and detainees can appeal
detention (s. 179). Prosecution attorneys are required to inspect all
people in custody daily (s. 81).

Powers of detention
in the CPA: Only a court can order detention for trial (s. 80). Courts can
order detention for up to one month, renewable weekly, and superior
magistrates can order detention for up to six months, renewable monthly.

Bail: The CPA
allows for bail against different guarantees (s. 105) for offences not
involving compensation (diyya) or Islamic hadd punishments
(ss. 107, 108). Any reasons for not releasing persons accused of bailable
offences must be recorded (s. 108).

Free legal
representation: The CPA allows for free legal representation only for
people facing the gravest charges (s. 135).

Language: The CPA
gives a right to translation of trial proceedings, but not other
proceedings (s. 137).

Sentencing:
Sentencing may consist of physical punishment (such as lashings),
compensation (for homicide or injury) and death. It is the trial judge's
responsibility to explain the sentence and any appeal rights that are
available to the convicted person and to other interested parties (CPA
171).

The
amended Law of Criminal Procedure 1991 added additional powers to
law-enforcement to investigate, arrest, interrogate or detain irrespective of
magisterial investigation, as was lawfully required to guarantee the rights of
persons in contact with the law.[30]
Notwithstanding both of these acts, the National Security Act includes a
provision authorizing solitary detention from nine months to a year, which has
been alleged to be largely used to harass political opponents.[31] Against this legal
backdrop, human rights organizations allege routine arbitrary detentions,
extrajudicial killings and torture by central government agents.[32] Despite a Constitutional
guarantee of fair and prompt trials, trials in "regular courts nominally (meet)
international standards of legal protections. The accused normally have the
right to an attorney, and the courts are required to provide free legal counsel
for indigent defendants accused of crimes punishable by death or life
imprisonment; however, there (are) reports that defendants frequently did not
receive legal counsel and that counsel in some cases could only advise the
defendant and not address the court."[33]

Civil Matters

Civil
matters are formally governed by statute, but outside the capital are in
practice resolved at through informal laws and long-standing community justice
mechanisms. Disagreement over the outcome of such will lead the parties to
then appeal to the formal justice system, though much discretion is generally
accorded to the decision rendered by a local Sultan or popular court. Relevant
formal laws include the Civil Transactions Act, the Family Code, 1991. Passed
in 1991, the Family Code includes shari'a principles as well as
interpretations of some manshurat, though the Supreme Court (Shari'a
Circuit) is vested with the power to issue interpretations of Code. Hanafi fiqh
is also established as a residual source of law.[34]

Muslim Personal Law Act

Excepts from Emory Law School Sudan Law Overview[35] - The Muslim
Personal Law Act 1991 requires that both parties to a marriage be past the age
of puberty and consent to the marriage. A male guardian marries adult women
with their consent, although the qadi is empowered to act in this capacity if
her guardian refuses his consent without justification. The guardian retains
entitlement to seek dissolution on the grounds of lack of kifa'a of the
husband, where kifa'a is defined in religion and morals. The wife is entitled
to maintenance, assessed according to the circumstances of the husband;
however, the wife loses the right to maintenance if she refuses to move to the
marital home or leaves it without a shari'a justification. Right to
maintenance may be lost if the wife works outside the house without the
husband's consent, provided he is not being arbitrary in such.

Reforms
standard to the region to the rules on talaq have been introduced. These
reforms include the validity of talaq in terms of its number in word or sign;
talaq in the form of an oath; and talaq intended to induce someone to do
something. As a further reform to what is known as classical law, the wife
must be informed of her husband's revocation of a revocable talaq during her
'idda period in order for the revocation to be valid. A judicial divorce may
be sought by the wife on the following grounds: a husband's incurable physical
or mental illness rendering it impossible for the wife to continue to live with
him without harm; a husband's impotence not curable within one year; a
husband's cruelty, or discord between the spouses; a husband's inability to pay
maintenance. Finally, a divorce by 'ransom' may be instigated where a wife who
is held disobedient by the court may waive her rights in return for a divorce;
arbitrators must be appointed if the husband refuses to agree to such, and if
the wife establishes that she suffers from remaining with him, a talaq will be
ordered by the court.

After
divorce, the wife is entitled to maintenance for the `idda period and to mut`a,
which is assessed according to the means of her ex-husband - but only to a
maximum of six monthsof maintenance. Maintenance will not be accorded
in such a manner if the divorce was a judicial divorce by reason of the man's
poverty and inability to pay maintenance, or for some physical reason arising
in the wife, or unless the divorce was by khul.' A divorced mother is entitled
to custody of her male children till they are 7 years old and females till they
are 9. This period may be extended by the court if it can be proven to be in
the interests of the wards, in which case, custody will extend until the sons
reach puberty and the daughters consummate marriage. The father or other male
guardian is to maintain scrutiny of all matters related to the raising of the
children in the custody of their mother. Child support is the responsibility
of the father until the daughter is married and the son is of an age when he is
able to earn his own living.

Gender Issues

Women's
community-based groups voice serious concerns with the prevalence of
gender-based violence, which is considered to include: Early (forced) marriage
of girls; Domestic violence; Rape; Female circumcision; Forced marriages of
widows.[36]
Additional prevailing gender issues include the right to own property; freedom
of choice to enter into marriage; payment of dowry - bride wealth; wife
inheritance; ghost marriages. Of note, the Convention on the Elimination of
All Forms of Discrimination Against Women has not been signed and ratified by Sudan.[37]

Child Rights and Duties

While
Sudan ratified the Convention on the Rights of the Child (CRC) without
reservation, the prevalence of key child rights issues remain of concern, including
child labour; choice of education; rights to own property; right to care and
protection; and juvenile justice concerns. The Child Act 2004 prescribes laws
for child welfare, juvenile justice issues (including children's rights during
arrest and imprisonment), health, education, 'working child', and the broader
subject of 'satisfying child cultural needs.' The legislation is due to be
revised after the signing of the Interim Constitution and consequently, it is
in force but not being implemented. As such, the act is seen more to serve as
an advocacy tool.

Juvenile Justice

All
children under seven are below the age of criminal responsibility. All those
above 15 have reached the age of criminal responsibility. Children between
seven and 15 are criminally responsible if they have reached puberty.[38] The Criminal Procedure Act
1991 (CPA) - which has few special protections for children in arrest and
detention - is the law under which children are arrested and tried, and
together with other legislation such as the Child Act provides the following:

Children's arrest
in the Child Act: The Child Act states that where a warrant is issued for
children's arrest, they should be arrested by Children's Police (s. 51.1)

Special
provisions for children: The Juvenile Care Act 1983 says that
parents/guardians or lawyers should be informed of any procedures
involving children, as far as possible (s. 17b). Child Act: a
parent/guardian and social welfare officer must be present (s. 50).

Confidentiality:
Children's trials are supposed to be in private Child Act (s. 64).

Sentencing:
Section 58 prescribes broad measures of 'corrective arrangements', which
range from placing in the custody of family member or other adult, to
being prevented from frequenting certain places or practicing certain
jobs; the Act confers broad powers on the courts to prescribe measures it
considers necessary for delinquent children or those 'susceptible to
delinquency'; Article 85 stipulates that if a child between 15 and 18
years of age is found guilty of an offence punishable by death sentence,
that child shall be sentenced to no less than 6 years, and no more than 10
years.

Alternatives to
imprisonment: The Criminal Act (s. 33.3) states that children should not
be sentenced to jail except for the Islamic-defined crime of haraba (waging
war against society). Child Act (ss. 60, 62) allow for a wide variety of
non-custodial dispositions. The Criminal Procedure Act allows for
suspension of sentence (s. 170). The Criminal Act alternatives to imprisonment
include reprimand; awarding custody to the parent or other adult; or
sending to a reform institution for a period between 2-5 years (s. 47).

The Child Act 2004

The
Child Act 2004 repealed Juvenile Welfare Act 1983. Here, a child is defined as
any individual below the age of 18, unless the more applicable law stipulates
that the child has reached age of maturity. The Act establishes that the
protection and best interests of the child will have priority in all decisions
or measures concerning "childhood, family or environment' (Chapter Two, s.
5(b)).

In
terms of education, 'free education in the basic stage' is affirmed as a
fundamental right for child upon age 6, for which 'the state shall create a
conducive atmosphere' (s. 27). Section 32 provides for a school record that
contains a birth certificate as well as notation as to 'health condition, type
of disability and social status' and level of education. Corporal punishment
is prohibited (section 30(a)); however, amongst objectives of education of
Sudanese child is the building of character in the child that shall 'worship
Allah in Freedom.' This objective is clearly problematic in light of Sudan's ethnic and religious pluralism.

In
relation to what is termed as 'child culture' and 'satisfying child cultural
needs', the act maintains a broad prohibition of any publications and literary
works that "appeal to child's instincts or urging (sic) him to indulge in
behaviours contrary to society's values and traditions or encouraging
delinquency" (s. 36). The state is obliged to establish bookshops for
children, which are to be associated with children's clubs mandated under the
Act.

With
respect to child labour, children under age 15 are prohibited from employment
in industrial work; however, children between the ages of 14 and 18 may
participate in agricultural work that is not harmful to health, as well as
apprenticeships - both of which are subject to Ministerial regulations (s.
39(2)(a)). Notably, section 41 prohibits the use of children in armed
conflict, forced labour, illicit trade and sexual exploitation; and section
84(1)(d) establishes penal consequences for employers or manages for violations
of such with max imprisonment of one year, or fine, or both. The Act also
establishes labour requirements for the employment of children between 14 and
18 under the legislated exceptions. These include: medical checks by employers
(s. 42), working hours not exceeding 6 hours daily with one hour break (s.
43(1)), prohibition of working between 8pm and 7 am (s. 43(3)).

The
Act also prescribes government obligations in relation to child welfare. These
include the establishment of "alternative welfare families" and institutions
(s. 22 and 23 respectively); as well as correction houses for delinquent children
(s. 24), and the employment of disabled children in state organs and public
utilities (s. 55).

Public Laws

Khartoum Public Order
Act 1998

This
Act governs certain activities within the Khartoum State. First, private or
public parties are subject certain permissions (s. 5) and prohibitions,
including "no dancing between men and women and women shall not dance in front
of men" (s. 7(1)(b)). Other areas subjected to restrictions under the act
include the use of public transportation (s. 9); a prohibition of begging and
vagrancy (s. 10); license requirements for places of women's hairdressers (Ch.
5); and a prohibition of using loud speakers (Ch. 6). Penalties for
infractions include fines, whipping and imprisonment (Ch. 7).

Labour Act 1997

This Act applies to all workers except civil
servants, members of the armed forces, domestic servants, agricultural workers,
family members of an employer, and casual workers.

The
Act establishes a Manpower Committee (Ch. II), which is responsible for inter
alia, coordinating manpower-related issues within executive organs and the
collection of related data.

The
Act also addresses the Organization of Employment (Ch. III) through provisions
governing employment agencies, private employment agencies,
recruitment, apprenticeships, and registration of workers. Chapter Three
includes a requirement that all Sudanese seeking employment outside of Sudan seek permission of the Federal Minister of Labour. (s. 14) Chapter Four's "Employment
of Women and Young Persons" includes a prohibition of the employment of women
in hazardous or arduous working conditions and during the night - save for administrative or health-care jobs. In relation to children, Chapter
IV forbids the employment of children (defined as persons under 12 years of
age) and the employment of young persons (persons under 16 years of age) in
specified tasks that are listed under section 21.

Chapter
Five's "Contracts of Employment" regulates the types and contents of
employment contracts and permitted modes of renewal. The sixth chapter,
"Wages, advances and other allocations" governs the payment of wages while the
seventh chapter, "Hours of work and leave" regulates the calculation of
official hours of work, overtime work, types of leave (annual, maternity - four
weeks prior to and following birth, sick, religious - namely, Hadj and Idda).
The remaining chapters address "Termination of contract or employment" (Ch.
VIII); "Severance pay" (Ch. IX); "Industrial Safety" - i.e. occupational health
and safety (Ch. XI); "Labour disputes and stages of their settlements" (Ch.
XII); and the "Stages of settling labour disputes" - i.e. negotiation and
arbitration (Ch. XIII) and other general provisions concerning penalties,
validity of contracts with successor employers, and labour inspection. (Ch. X). Despite the laws concerning workplace health and safety, working conditions
are generally poor, and enforcement by the Ministry of Labour minimal.[39]

Additional
legislation relating to labour issues include the Public
Service Act (No. 5 of 1991) and its accompanying Public Service Regulations,
1995; as well as the Peasants' Organizations Act of 1976, which includes the
treatment of agricultural workers. Relevant to broader public welfare
are the Health Insurance Act, 2000, which addresses
medical care and sickness benefit; and the Social Security Act of 1990, which
addresses old age security, and survivor's benefits.

Commercial Laws

Banking Law

Banking
is governed by the Law on the Regulation of Banking and the Money Laundry
Combating Act. The Bank of Sudan Act 2000 establishes the Bank of Sudan and
provides for its objectives in relation to setting monetary and credit policy,
currency and exchange rates as well as economic and social development (s. 6).
The functions and powers of the Bank are executed through the Bank's Board (Ch.
III) and the Governor (s. 10). The Act governs "Capital, Reserves and Profits"
(Chapter IV); "Currency" (Ch. V); "Foreign Exchange - Operations" (Ch. VI);
"Relations with other Banks" (Ch. VII)'; "Relations with the Government" (Ch.
VIII); "Other Operations of the Bank" (Ch. IX); and "Accounts" (Ch. XI).

Investment Encouragement
Act, 1999 Amended (2003)

Laws
such as the Investment Encouragement Act have likely much facilitated the
ability of the ruling Islamists "to privatize most of the State's
infrastructural establishments and key production units, including tanneries,
textile factories, and railways."[40]
This Act in particular aspires to "encourage investment in projects in the
fields of agricultural, animal and industrial activities, energy and mining,
transport, communication, tourism and environment, storage, housing,
contracting, infrastructure, economic, administrative and consultative
services, information technology, education, health, water and culture and
information services and any such other field, as the Council of Ministers may
specify." It consists of five parts, which include: "Encouragement of
Investment"; "Privileges and Guarantees"; "Safeguard of Investment"; "Investment
Organs"; and "Final Provisions." An anti-discrimination clause is provided for
at the outset, which states that "no discrimination shall be made between
invested money, by reason of its being local, Arab or alien, or by reason of
its being public, private, co-operative or mixed sector" (s. 8(1)).

Certain
fields are deemed strategic investment, namely those relating to
infrastructure, roads, ports, electricity, dams, communications, energy,
transport, contracting business, education, health and tourist and information
technology services and water projects; relating to extraction of subterranean
and deep seas wealth; agricultural, animal and industrial production; crossing
more than one state; and any such other fields, as the Council of Ministers may
prescribe (s. 9(1)). Those considered strategic projects are exempted from
taxes from the business profits tax for a period of ten years (s. 10(1)(a)); as
well as exempted from customs duties, or "customs privileges", as prescribed by
the Minister (s.11(1)). State projects may also be exempted from taxes and
fees (s. 13); likewise, federal projects also enjoy certain privileges,
including exemption from local state taxes and fees (s. 14, 15).

Most
notably, the Act provides for an explicit rule concerning expropriation.
Specifically, the Act provides for the "non-nationalization, or
non-confiscation of his project, non-acquisition of all, or part of the estates
of the project thereof, or his investments, for public interest", with the
exception that any such expropriation would have to be committed under the law and
with "just compensation. (Emphasis added)" (s. 17(1)(a) - Investment
Guarantees). Also noteworthy is a provision requiring that all investment
projects require a licence (s. 19); the process for the granting of such
licenses is governed under Chapter 4 - Safeguard of Investment, which includes
a provision concerning "duties of the investor" (s. 25). The fifth and final
chapter explains the relevant government bodies overseeing the Act, including
the formation of a "Committee of Commissioners" (s. 27 - 30). The Act is
unclear as to accountability for the granting of such licenses, which is
problematic given the breathtaking breadth of investment activity that the Act
potentially encapsulates.

National Petroleum
Commission (NPC)

Since
the discovery of oil in the South of Sudan, development and control over such
has remained a difficult issue for some time, especially in relation to the
conflict in South Sudan. Following the Sudan Interim National Constitution[41], Presidential
Decree No. 37 (2005) was formulated concerning the establishment of the
National Petroleum Commission (NPC). The Commission is
primarily responsible for formulating policies and guidelines in relation to
the development and management of the petroleum sector and to monitor the
implementation of these policies to ensure that they "serve the best interest
of the people of Sudan".

The Telecommunication
Act 2001

The
Telecommunication Act establishes the National Telecommunication Corporation,
which regulates and licenses the provision of telecommunications services. The
National Telecommunication Corporation has suspended on-line publications,
including internet site "Sudanonline" in March 2006. The Act ought to be
considered against the broader efforts to curtail freedom of expression and
freedom of the press by Sudanese authorities. Examples of such include:
journalists being routinely subject to interrogation by the security prosecutor
of crimes against the state; foreign journalists generally being denied access
to the region of Darfur; and members of the media are usually urged on by
government security officials to support foreign policy decisions by the
President.[42]

The
Act is applicable to those "licensed hereto, to install and operate a
broadcast station, a public or private telecommunication network, or use
frequencies or import or trade in telecommunication equipment, shall adapt
their positions according to the provisions of this Act in a period not exceeding
three months from the date of signature of this Act." (s. 3) The Act
addresses issues such as the National Telecommunications Corporation's
Establishment, the Headquarters and Supervision of the Corporation (Ch.
ІІ); the Management of the Corporation Establishment And
Constitution of the Board (Ch. ІІІ); the establishment
of Telecommunications, Equipment and Radio Stations, Possession and Use
Of Telecommunication Network (Ch. IV); Licensing and Fees Licensing
(Ch. V); Public Telecommunication Services Submission of Reports
(Ch. VI); Inspection and Supervision Adherence to the License Conditions
(Ch. VІІ); and General Provisions Connectivity of Licensed
Telecommunications Networks (Ch. VІІІ).

Copyright and
Neighbouring Rights Protection Act 1996

This
Act establishes intellectual property standards in relation to works,
performances, etc. in Sudan. The Act establishes the "Scope of Copyright
Protection," including Works Covered by the Protection(s.5),
Works Not Covered by the Protection(ss.6 - 7), Copyright(s.8); "Ownership of Copyright" (Part III), including
Author's Name(s.10), Joint Works(s.11).
Cinematograhic and Analogous Work(s.12), Duration of
Author's Protection(s.13), Restrictions on Copyright(s.14); the Transfer of Ownership of Copyright (Part IV),
including Transfer of Moral and Financial Rights(s.15),
Use of Copyright(s.16), Publishing Contract(s.17), Public Performance Contract(s.18),
Vesting of Ownership of Copyright on Author's Death(s.19),
Order of Publication and Falling of Works into the Public Domain(s.20), Invalidity of Acts of Third Party for Lack of
Consent(s.21). Finally, the "Registration of Works and
Contracts" (Part V) is provided for, as is Protection of Neighbouring Rights of
Performers (Part VI); and the Infringement of Copyright
and Legal Consequences Thereof (Part VII).

[3]Of note, a
Workshop Report of the SPLM Secretariat for Legal Affairs and Constitutional
Development, together with the Customary Law Steering Committee, states that the "imposition
of Sharia law (both in personal and criminal matters) to the whole of
Sudan was yet another threat to Customary Law and was one of the major causes
of the resumption of the war in 1983." (December 2004), available at: www.gurtong.org/ResourceCenter/laws/First_Customary_Law_Workshop_Report.doc.

[14] Public order
courts, which originally heard only minor public order issues, were suspended
in 2000, and public order cases became heard in criminal courts. "The public
court is the court of a single judge, the preliminary jurisdiction of which is
defined by law in civil, criminal and personal matter cases. It also enjoys
an appellate jurisdiction against judgments of magistrate of third and second
grade in criminal cases." Republic of the Sudan - The Judiciary, available at:
http://www.sudanjudiciary.org/golded/en/court.htm.

[15]"There are 397
court of first instance distributed all over the country. Their power(s) are
prescribed by the civil procedure act of 1983 and the code of criminal
procedure of 1991. The Chief Justice defines their pecuniary powers in civil
cases and their penal powers vis-ą-vis the imposing of fine also criminal
cases. They also dispose of the matters summarily and non summarily depending
on the merits of cases." Ibid.

[26] A paper for
conference on Legal Aid in Criminal Justice in Africa, Lilongwe, November 23,
p. 5.

[27] The British
and Egyptians shared sovereignty during the Condominium period from 1899. An
agreement to allow for a three-year transition period to independence in 1953
led to self-rule in 1956. See Emory Law School, available at: http://www.law.emory.edu/IFL/legal/sudan.htm.

[36]Based upon
interviews by the author with Sudanese women's non-governmental organizations
and community groups during July 2005.

[37] The Special
Rapporteur on the situation of human rights in the Sudan urged the Sudanese
Government in 2002 to continue discussions and awareness-raising with a view to
acceding to the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW).

[43]This
site reports the following in relation to the nature of human rights violations
in Sudan: "The Government of Sudan enjoys a reputation of resisting the
presence and activities of human rights groups in the investigation of human
rights abuses. Violence and discrimination against women were problems. Prostitution
is a growing problem, and female genital mutilation (FGM) is widespread. Abuse
of children remained a problem. Discrimination and violence against religious
minorities persisted, as did discrimination against ethnic minorities and
government restrictions on worker rights. Child labour is widespread. Abduction
of women and children, and slavery and trafficking in persons remained
problems. Government security forces and associated militias were responsible
for abductions of women and children, use of forced labour (including forced
child labour), slavery, and the forced conscription of male children."

[44]This site
reports: "The
Government's human rights record remained extremely poor, and, although there
were improvements in some areas, numerous, serious problems remained. Citizens
were unable to change their government peacefully. Security forces and
associated militias were responsible for extrajudicial killings and disappearances.
Government forces, allied militias, and insurgent groups killed and injured
thousands of civilians in conflict. Security forces regularly beat, harassed,
arbitrarily arrested, and detained incommunicado opponents or suspected
opponents of the Government, and there were reports of torture. Security forces
and associated militias beat refugees, raped women abducted during raids, and
harassed and detained IDPs."

Hauser Global Law School Program, New York University School
of Law
40 Washington Square South, New York, New York 10012-1099
Telephone: (212) 998-6691, Facsimile: (212) 995-